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Migration Legislation Amendment Bill (No. 1) 1999

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1998-99

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

SENATE

 

 

 

 

 

MIGRATION LEGISLATION AMENDMENT BILL (No. 2) 1998

 

REPLACEMENT EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

(Circulated by authority of the

Minister for Immigration and Multicultural Affairs,

the Hon. Philip Ruddock MP)

 

 



MIGRATION LEGISLATION AMENDMENT BILL (No. 2) 1998

 

 

OUTLINE

 

Overview

 

1 .      The Migration Legislation Amendment Bill (No. 2) 1998 ("the Bill") seeks to amend the Migration Act 1958 ("the Migration Act") to clarify the rights of certain people in immigration detention.

 

2.      Section 189 of the Migration Act provides for the mandatory detention of a non-citizen who does not hold a valid visa.  Such people are in Australia unlawfully and are not entitled to be at liberty in the community.

 

3.      Certain rights for detainees and obligations on officials responsible for the detention are set out in the Migration Act.  For example, detainees to whom section 193(1) does not apply have the right to be advised that they may apply for a visa within the statutory time limits.

 

4.      Section 256 of the Migration Act establishes that a person in immigration detention has a right to access facilities to make a statutory declaration or obtain legal advice or take legal proceedings only when requested .  The intention is to place the onus on unlawful non-citizens to make a request for such assistance.

 

5.      This Bill seeks to clarify the law so that this onus cannot be overcome through communication by sealed envelopes between the Human Rights and Equal Opportunity Commission (‘HREOC’) or the Ombudsman and detainees, except where those communications are in relation to a complaint to one of those agencies made by the person detained.  The Bill is in response to the decision of the Federal Court in Human Rights and Equal Opportunity Commission and Human Rights Commissioner v Secretary of the Department of Immigration and Multicultural Affairs (1996) 137 ALR 207.

 

6.      The proposed amendments to the Migration Act seek to:

 

·         ensure that there is no obligation on the Minister or any officer to provide a person to whom section 193(1) applies with an application form for a visa.  However, there will be an obligation on the person responsible for a non-citizen’s immigration detention to provide applications forms for a visa on that detainee’s request ; and

 

·         provide that paragraph 20(6)(b) of the Human Rights and Equal Opportunity Commission Act 1986 (the ‘HREOC Act’) and paragraph 7(3)(b) of the Ombudsman Act 1976 (the ‘Ombudsman Act’) do not apply to persons who, having arrived in Australia as unlawful non-citizens, are in immigration detention - unless such persons themselves initiate a complaint either in writing to HREOC, or orally or in writing to the Ombudsman.

 

7.       The proposed amendments do not seek:

 

·         to limit any powers or responsibilities of HREOC or the Ombudsman, other than those that relate to the delivery of sealed envelopes by those two agencies to persons to whom section 193(1) of the Act applies; or

 

·         to limit the rights of detainees, to whom section 193(1) applies, to request advice including legal advice from any body, including HREOC and the Ombudsman.

 

 

FINANCIAL IMPACT STATEMENT

 

8.      The amendments to the Migration Act will have no financial impact.



 

MIGRATION LEGISLATION AMENDMENT BILL (No. 2) 1998

 

 

NOTES ON INDIVIDUAL CLAUSES

 

Clause 1             Short Title

 

1 .      This clause provides that the Act may be cited as the Migration Legislation Amendment Act (No. 2) 1998 .

 

Clause 2             Commencement

 

2 .         This clause provides that the Act is taken to have commenced on the date of the introduction of the Bill into the Senate.  This is to ensure that the provisions of this legislation cover any issues that may occur between the date of introduction until the Act commences.

 

Clause 3            Amendment

 

3 .      This clause provides the Migration Act is amended or repealed as set out in the applicable items in the Schedule concerned, and that any other item in a Schedule is to operate according to its terms.

 

 

SCHEDULE 1

 

MIGRATION ACT 1958

 

Item 1               Subsection 193(2)

 

4 .      Section 193(1) provides that sections 194 and 195 do not apply to a person who is in immigration detention having been detained as an unlawful non-citizen on arrival in Australia.  Those sections set out obligations on officials to advise a detainee that they may apply for a visa within the statutory time frame and will be kept in immigration detention until either they are removed, deported or are granted a visa.

 

5.      Proposed subsection 193(2) provides that apart from the rights contained in section 256, there is no obligation on the Minister or any officer to provide to a person to whom subsection 193(1) applies with:

 

·         any advice as to whether the person may apply for a visa;

·         any opportunity to apply for a visa; or

·         access to advice (legal or otherwise) in relation to applications for visas.

 

6.         It also provides that in addition to these provisions, neither the Minister nor any officer has any obligation to provide a person to whom section 193(1) applies with an application form for a visa (unless that person requests one).

 

Item 2               Section 193

 

7.         This item inserts subsections (3) and (4) into section 193. 

 

8.         Subparagraph (3)(a) provides that paragraph 20(6)(b) of the Human Rights and Equal Opportunity Commission Act 1986, does not apply to those persons covered by subsection 193(1) unless these persons themselves initiate a complaint in writing to HREOC.

 

9.         This provision relates only to detainees covered by subsection 193(1).  The effect of the proposed amendment is that if such a detainee does not initiate a written complaint to HREOC, then the detainee does not have the right to have the sealed envelope delivered to them from HREOC.

 

10.       Similarly, subparagraph (3)(b) provides that paragraph 7(3)(b) of the Ombudsman Act 1976 does not apply to those persons covered by subsection 193(1) unless these persons themselves initiate a complaint to the Ombudsman.  Pursuant to the Ombudsman Act, the complaint may be made orally or in writing.

 

11.       This subparagraph relates only to detainees covered by subsection 193(1). The effect of the proposed amendment is that if such a detainee does not initiate a written or oral complaint to the Ombudsman, then the detainee does not have the right to have the sealed envelope delivered to them from the Ombudsman.

 

12.       Subsection (4) makes it clear that section 193 is to apply to persons covered by subsection (1) as long as person remains in immigration detention.

 

Note :                 A notation is made after the proposed amendment to section 193 to provide that the heading to section 193 (Sections do not apply) is to be replaced with "Application of law to certain non-citizens while they remain in immigration detention".

 

Item 3               Subsection 198(4)

 

13.       This item repeals subsection 198(4) of the Migration Act.  This subsection is no longer necessary in view of the amendments in this Bill to subsection 193(2) and the clarification provided by new subsection 193(4).

 

 

 

 

Item 4               Section 256

 

14.       Section 256 of the Migration Act establishes that the person responsible for a person’s immigration detention must, at the detainees request, provide all reasonable facilities necessary to make a statutory declaration for the purposes of the Migration Act, or for obtaining legal advice or taking legal proceedings in relation to their immigration detention.

 

15.       This item amends section 256 to provide that the custodian must also give visa application forms to a person in immigration detention if that person so requests.

 

16.       The purpose of section 256 is to ensure that the onus is clearly placed on the detainee to first request assistance set out in that section.  Once a detainee has made a request for that assistance, there is an obligation on the person responsible for that detention to facilitate that assistance.

 

17.       Section 256 is not intended to limit or interfere with the powers of either HREOC or the Ombudsman.  Both HREOC and the Ombudsman have the right to access an immigration detention centre for the purposes of an investigation, and their power to initiate their own motion inquiries is not intended to be affected by these amendments.

 

18.       The amendments made by this Act to section 193 do limit HREOC’s and the Ombudsman’s powers to send sealed envelopes to a detainee to whom section 193(1) applies and who has not made a complaint to those bodies, but are not intended to restrict their remaining powers.

 

Note:                 A notation is made after the proposed amendment to section 256 to provide that the heading to section 256 (Persons in immigration to have access to legal advice) is to be replaced with “Person in immigration detention may have access to certain advice, facilities etc”.

 

SCHEDULE 2

 

Item 1               Effect of Schedule 1 amendments

 

19.       This item provides that the amendments made in Schedule 1 are not intended to alter the effect of any orders made by a Court before the commencement of this Act.